EXHBIT 10.3
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COMMON STOCK PURCHASE AGREEMENT
By and Between
WOLFPACK CORPORATION
(the "Purchaser")
and
JETCO COMMUNICATIONS CORPORATION
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Dated as of March 31, 2000
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TABLE OF CONTENTS
Page
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Article I Certain Definitions.................................................... 1
Article II Purchase of Common Stock............................................... 3
Article III Representations and Warranties......................................... 3
Article IV Other Agreements of the Parties........................................ 8
Article V Defaults and Remedies.................................................. 10
Article VI Conditions Precedent to Closing........................................ 11
Article VII Conditions Subsequent to Closing....................................... 12
Article VIII Termination............................................................ 12
Article IX Legal Fees............................................................. 13
Article X Miscellaneous.......................................................... 13
Schedule 3.1(a) Subsidiaries
Schedule 3.1(c) Capitalization
Schedule 3.1(f) Required Consents and Approvals
Schedule 3.1(g) Litigation
i
PURCHASE AGREEMENT, dated as of March 31, 2000 (this "Agreement"),
by and between JetCo Communications Corporation, a Texas corporation (the
"Company"), with its principal office at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, and Wolfpack Corporation, a Delaware corporation, with its
principal office at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Purchaser").
WHEREAS, the Company desires to issue and sell to the Purchaser
and the Purchaser desires to acquire Two Million Five Hundred Thousand
(2,500,000) shares (the "Shares") of the authorized but unissued common stock,
$.001 par value per share (the "Common Stock") of the Company.
IN CONSIDERATION of the mutual covenants, promises and agreements
set forth herein and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
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Section 1.1. Certain Definitions. As used in this Agreement, and unless
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the context requires a different meaning, the following terms have the meanings
indicated:
"Affiliate" means, with respect to any Person, any Person that,
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directly or indirectly, controls, is controlled by or is under common control
with such Person. For the purposes of this definition, "control" (including,
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with correlative meanings, the terms "controlled by" and "under common control
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with") shall mean the possession, directly or indirectly, of the power to direct
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or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities by contract or otherwise.
"Business Day" means any day except Saturday, Sunday and any day
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which is a legal holiday or a day on which banking institutions in the state of
New York are authorized or required by law or other government actions to close,
between the hours of 9:30 a.m. and 6:00 p.m. New York Time.
"Closing" shall have the meaning set forth in Section 2.1(b).
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"Closing Date" shall mean the date of Closing, as set forth in
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Section 2.1(b).
"Code" means the Internal Revenue Code of 1986, as amended, and
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the rules and regulations thereunder as in effect on the date hereof.
"Commission" means the Securities and Exchange Commission.
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"Common Stock" means shares now or hereafter authorized of the
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class of Common Stock, $.001 par value, of the Company and stock of any other
class into which such shares may thereafter have been classified or changed.
"Exchange Act" means the Securities Exchange Act of 1934, as
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amended.
"Lien" means, with respect to any asset, any mortgage, lien,
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pledge, encumbrance, charge or security interest of any kind in or on such asset
or the revenues or income thereon or therefrom.
"Material" shall mean having a financial consequence in excess of
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$100,000.
"Material Adverse Effect" shall have the meaning set forth in
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Section 3.1(a).
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"NASD" means the National Association of Securities Dealers, Inc.
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"Per Share Consideration" shall have the meaning set forth in
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Section 2.1(a).
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"Person" means an individual or a corporation, partnership, trust,
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incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"Purchase Price" shall have the meaning set forth in Section
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2.1(a).
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"Required Approvals" shall have the meaning set forth in Section
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3.1(f).
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"Securities Act" means the Securities Act of 1933, as amended.
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"Subsidiaries" shall have the meaning set forth in Section 3.1(a).
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ARTICLE II
PURCHASE OF COMMON STOCK
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Section 2.1. Purchase of Common Stock; Closing
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(a) Subject to the terms and conditions herein set forth, the
Company shall issue and sell to the Purchaser, and the Purchaser shall purchase
from the Company on the Closing Date, Two Million Five Hundred Thousand
(2,500,000) Shares of Common Stock, at a price per Share of US$.10 (the "Per
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Share Consideration"). The Per Share Consideration multiplied by the number of
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Shares to be purchased by the Purchasers hereunder is hereinafter referred to as
the "Purchase Price." The total Purchase Price is $250,000.
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(b) The closing of the purchase and sale of the Shares of
Common Stock (the "Closing") shall take place at the offices of the Company on
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or before March 31, 2000. The date of the Closing is hereinafter referred to as
the "Closing Date".
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(c) At the Closing, (i) the Purchaser shall deliver to the
Company (A) US$250,000 of the Purchase Price as determined pursuant to this
Article I in immediately available funds by wire transfer to an account
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designated in writing by the Company prior to the Closing and (B) all documents,
instruments and writings required to have been delivered at or prior to Closing
by the Purchaser pursuant to this Agreement, and (ii) immediately upon receipt
of the Purchase Price, the Company shall deliver to the Purchaser Agent (A)
certificates for Two Million Five Hundred Thousand (2,500,000) shares of Common
Stock registered in the name of the Purchaser (B) all documents, instruments and
writings required to have been delivered at or prior to Closing by the Company
pursuant to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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3.1. Representations and Warranties of the Company. The Company hereby
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represents and warrants to the Purchaser as follows:
(a) Organization and Qualification. The Company is a
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corporation, duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, with the requisite corporate
power and authority to own and use its properties and assets and to carry on its
business as currently conducted. The Company has no subsidiaries other than as
set forth in Schedule 3.1(a) (collectively, the "Subsidiaries"). Each of the
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Subsidiaries is a corporation, duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, with the full
corporate power and authority to own and use its
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properties and assets and to carry on its business as currently conducted. Each
of the Company and the Subsidiaries is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in which the nature
of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as
the case may be, could not reasonably be expected to have, individually or in
the aggregate, a material adverse effect on (a) the results of operations,
assets, prospects, or financial condition of the Company and the Subsidiaries,
or (b) the Purchaser's rights under this Agreement (a "Material Adverse
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Effect").
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(b) Authorization; Enforcement. The Company has the
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requisite corporate power and authority to enter into and to consummate the
transactions contemplated hereby and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement by the
Company and the consummation by it of the transactions contemplated hereby and
thereby have been duly authorized by all necessary action on the part of the
Company. This Agreement has been duly executed and delivered by the Company and
constitutes the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the enforcement
of, creditors' rights and remedies or by other equitable principles of general
application.
(c) Capitalization. The authorized, issued and
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outstanding capital stock of the Company and each of the Subsidiaries is set
forth in Schedule 3.1(c). No shares of Common Stock are entitled to preemptive
or similar rights. Except as specifically disclosed in Schedule 3.1(c), there
are no outstanding options, warrants, script rights to subscribe to, calls or
commitments of any character whatsoever relating to, or, securities, rights or
obligations convertible into or exchangeable for, or giving any person any right
to subscribe for or acquire any shares of Common Stock, or contracts,
commitments, understandings, or arrangements by which the Company or any
Subsidiary is or may become bound to issue additional shares of Common Stock, or
securities or rights convertible or exchangeable into shares of Common Stock.
Neither the Company nor any Subsidiary is in violation of any of the provisions
of its respective certificate of incorporation, bylaws or other charter
documents.
(d) Issuance of the Common Stock. The Shares of Common
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Stock have been duly and validly authorized for issuance, offer and sale
pursuant to this Agreement and, when issued and delivered as provided hereunder
against payment in accordance with the terms hereof, shall be valid and binding
obligations of the Company enforceable in accordance with their terms. When
issued in accordance with the terms hereof, the Shares of Common Stock will be
duly authorized, validly issued, fully paid and nonassessable.
(e) No Conflicts. The execution, delivery and performance
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of this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby do not and will not (i) conflict
with or violate any provision of its certificate of incorporation or bylaws or
(ii) subject to obtaining the consents referred to in Section 3.1(f), conflict
with, or
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constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company is a party, or (iii) to the knowledge of the
Company result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Company is subject (including Federal and state securities laws and
regulations), or by which any property or asset of the Company is bound or
affected, except in the case of each of clauses (ii) and (iii), such conflicts,
defaults, terminations, amendments, accelerations, cancellations and violations
as would not, individually or in the aggregate, have a Material Adverse Effect.
The business of the Company is not being conducted in violation of any law,
ordinance or regulation of any governmental authority, except for violations
which, individually or in the aggregate, do not have a Material Adverse Effect.
(f) Consents and Approvals. Except as specifically set
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forth in Schedule 3.1(f), neither the Company nor any Subsidiary is required to
obtain any consent, waiver, authorization or order of, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Company of this Agreement, other than the making
of the applicable blue-sky filings under state securities laws, and other than,
in all cases, where the failure to obtain such consent, waiver, authorization or
order, or to give or make such notice or filing, would not materially impair or
delay the ability of the Company to effect the Closing and deliver to the
Purchaser the Shares of Common Stock free and clear of all Liens (collectively,
the "Required Approvals").
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(g) Litigation; Proceedings. Except as specifically
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disclosed in Schedule 3.1(g), there is no action, suit, notice of violation,
proceeding or investigation pending or, to the best knowledge of the Company,
threatened against or affecting the Company or any of its Subsidiaries or any of
their respective properties before or by any court, governmental or
administrative agency or regulatory authority (Federal, State, county, local or
foreign) which (i) relates to or challenges the legality, validity or
enforceability of this Agreement or the Shares of Common Stock (ii) could,
individually or in the aggregate, have a Material Adverse Effect or (iii) could,
individually or in the aggregate, materially impair the ability of the Company
to perform fully on a timely basis its obligations under this Agreement.
(h) No Default or Violation. Neither the Company nor any
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Subsidiary (i) is in default under or in violation of any indenture, loan or
credit agreement or any other agreement or instrument to which it is a party or
by which it or any of its properties is bound, except such conflicts or defaults
as do not have a Material Adverse Effect, (ii) is in violation of any order of
any court, arbitrator or governmental body, except for such violations as do not
have a Material Adverse Effect, or (iii) is in violation of any statute, rule or
regulation of any governmental authority which could (individually or in the
aggregate) (x) adversely affect the legality, validity or enforceability of this
Agreement, (y) have a Material Adverse Effect or (z) adversely impair the
Company's ability or obligation to perform fully on a timely basis its
obligations under this Agreement.
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(i) Certain Fees. No fees or commission will be payable
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by the Company to any investment banker or bank with respect to the consummation
of the transactions contemplated hereby.
(j) Non-Registered Offering. Neither the Company nor any
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Person acting on its behalf has taken or will take any action (including,
without limitation, any offering of any securities of the Company under
circumstances which would require the integration of such offering with the
offering of the Shares of Common Stock under the Securities Act) which might
subject the offering, issuance or sale of the Shares of Common Stock to the
registration requirements of Section 5 of the Securities Act.
(k) Non-Reporting Company; Eligibility to use Exemption
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under Rule 506 of Regulation D. The Company is not subject to the reporting
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requirements of Section 13 or Section 15(d) of the Exchange Act. The Company is
eligible to issue securities exempt from the registration requirements of
Section 5 of the Securities Act pursuant to Rule 506 of Regulation D promulgated
under the Securities Act.
Section 3.2. Representations and Warranties of the Purchasers. The
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Purchasers hereby represents and warrants to the Company as follows:
(a) Organization; Authority. The Purchaser is a corporation
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duly and validly existing and in good standing under the laws of the
jurisdiction of its incorporation. The Purchaser has the requisite power and
authority to enter into and to consummate the transactions contemplated hereby
and otherwise to carry out its obligations hereunder and thereunder. The
purchase of the shares of Common Stock by the Purchaser hereunder has been duly
authorized by all necessary action on the part of the Purchaser. This Agreement
has been duly executed and delivered by the Purchaser or on its behalf and
constitutes the valid and legally binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
generally and to general principles of equity.
(b) Investment Intent. The Purchaser is acquiring the
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Shares of Common Stock for its own account for investment purposes only and not
with a view to or for distributing or reselling such Shares or any part thereof
or interest therein, without prejudice, however, to the Purchaser's right,
subject to the provisions of this Agreement, at all times to sell or otherwise
dispose of all or any part of such Shares in compliance with applicable federal
and State securities laws.
(c) Purchaser's Status. At the time the Purchaser was
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offered the Shares, it was not, and at the date hereof, is not, and at the
Closing Date, will not be "accredited investor" as defined in Rule 501(a) under
the Securities Act. The Purchaser was not organized for the specific purpose of
acquiring the shares of Common Stock of the Company. The Purchaser is purchasing
the Shares for its own account.
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(d) Experience of Purchaser. The Purchaser, either alone
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or together with its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating
the merits and risks of the prospective investment in the Shares, and has so
evaluated the merits and risks of such investment.
(e) Ability of Purchasers to Bear Risk of Investment. The
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Purchaser is able to bear the economic risk of an investment in the Shares and,
at the present time, is able to afford a complete loss of such investment.
(f) Prohibited Transactions. The Shares to be purchased
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by the Purchaser are not being acquired, directly or indirectly, with the assets
of any "employee benefit plan", within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended.
(g) Access to Information. The Purchaser acknowledges
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that it has been afforded (i) the opportunity to ask such questions as it has
deemed necessary of, and to receive answers from, representatives of the Company
concerning the terms and conditions of the offering of the Shares and the merits
and risks of investing in the Shares; (ii) access to information about the
Company and the Company's financial condition, results of operations, business,
properties, management and prospects sufficient to enable it to evaluate its
investment in the Common Stock; and (iii) the opportunity to obtain such
additional information which the Company possesses or can acquire without
unreasonable effort or expense that is necessary to make an informed investment
decision with respect to the Shares.
(h) Reliance. The Purchaser understands and acknowledges
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that (i) the Shares are being offered and sold, to them without registration
under the Securities Act in a transaction that is exempt from the registration
provisions of the Securities Act, (ii) the availability of such exemption,
depends in part on, and that the Company will rely upon the accuracy and
truthfulness of, the foregoing representations and the Purchaser hereby consents
to such reliance, and (iii) that the certificates representing the shares will
bear the appropriate legend stating the restrictions on the resale and transfer
of the shares.
The Company acknowledges and agrees that the Purchaser makes
no representation or warranty with respect to the transactions contemplated
hereby other than those specifically set forth in Article III herein.
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ARTICLE IV
OTHER AGREEMENTS OF THE PARTIES
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Section 4.1. Manner of Offering. The Shares of Common Stock are being
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issued pursuant to Rule 506 of Regulation D promulgated under Section 4(2) of
the Securities Act. The Shares of Common Stock will not be exempt from
restrictions on transfer, and certificates for the shares of Common Stock will
carry a restrictive legend with respect to the restrictions on the resale and
transfer of the Shares.
Section 4.2. Furnishing of Information. As long as the Purchaser owns
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the Shares, the Company will promptly furnish to it all annual and quarterly
reports comparable to those required by Section 13(a) or 15(d) of the Exchange
Act.
Section 4.3. Notice of Certain Events. The Company shall (i)
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advise the Purchaser promptly after obtaining knowledge thereof, and, if
requested by the Purchaser, confirm such advice in writing, of (A) the issuance
by any state securities commission of any stop order suspending the
qualification or exemption from qualification of the Common Stock for offering
or sale in any jurisdiction, or the initiation of any proceeding for such
purpose by any state securities commission or other regulatory authority, or (B)
any event that makes any statement of a material fact made by the Company in
Section III untrue or that requires the making of any additions to or changes in
the Company's representations or warranties in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading, (ii) use its best efforts to prevent the issuance of any stop order
or order suspending the qualification or exemption from qualification of the
Common Stock under any state securities or Blue Sky laws, and (iii) if at any
time any state securities commission or other regulatory authority shall issue
an order suspending the qualification or exemption from qualification of the
Common Stock under any such laws, use its best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time.
Section 4.4. Blue Sky Laws. The Company shall cooperate with the
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Purchaser in connection with the exemption from registration of the Shares under
the securities or Blue Sky laws of such jurisdictions as the Purchaser may
request and to continue such exemption at all times through the fourth
anniversary of the Closing Date; provided, however, that neither the Company nor
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its Subsidiaries shall be required in connection therewith to qualify as a
foreign corporation where they are not now so qualified. The Company agrees that
it will execute all necessary documents and pay all necessary state filing or
notice fees to enable the Company to sell the Shares to the Purchaser.
Section 4.5 Integration. The Company shall not and shall use its best
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efforts to ensure that no Affiliate shall sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in Section
2 of the Securities Act) that would be integrated with the offer or sale of the
Shares in a manner that would require the registration under the Securities Act
of the sale of the Shares to the Purchaser.
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Section 4.6 Solicitation Materials. The Company shall not (i)
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distribute any offering materials in connection with the offering and sale of
the Shares other than the information previously supplied to the Purchaser or
(ii) solicit any offer to buy or sell the Shares by means of any form of general
solicitation or advertising.
Section 4.7. Prohibition on Certain Actions. From the date hereof
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through the Closing Date, the Company shall not and shall cause the Subsidiaries
not to, without the consent of the Purchaser, (i) amend its Certificate of
Incorporation, bylaws or other charter documents so as to adversely affect any
rights of the Purchaser; (ii) split, combine or reclassify its outstanding
capital stock; (iii) declare, authorize, set aside or pay any dividend or other
distribution with respect to the Common Stock; (iv) redeem, repurchase or offer
to repurchase or otherwise acquire shares of its Common Stock; or (v) enter into
any agreement with respect to any of the foregoing.
Section 4.8. Use of Purchase Price. The Company shall apply the
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Purchase Price exclusively for the use in the acquisition of the assets of one
of the following companies: Phone America, Express Telephone Service Inc.,
Transnational or Total Local Telephone Service (the "Acquisition").
ARTICLE V
DEFAULT AND REMEDIES
In the event the Company desires to change the use of the Purchase
Price for some purpose other than the Acquisition (the "Original Use"), the
Company shall send a written notice by facsimile to the Purchaser explaining the
change in the use of the Purchase Price (the "Change Notice"). The Change Notice
shall include all information necessary to the satisfaction of the Purchaser to
understand the change in the use of the Purchase Price. The Purchaser shall have
four (4) Business Days from the receipt of the Change Notice to consent in
writing to the change in the use of the Purchase Price or notify the Company in
writing that such consent is not granted. In the event that the Purchaser does
not grant such consent, the Company shall have two (2) Business Days to give
written notice (the "Decision Notice") to the Purchaser if the Company will
change the use of the Purchase Price from the Original Use. If the Company
notifies the Purchaser that it will change the use of the Purchase Price from
the Original Use, then this Agreement shall be voidable at the sole option of
the Purchaser. In order to declare this Agreement void, the Purchaser shall send
written notice within five (5) Business Days of Purchaser's receipt of the
Decision Notice that the Purchaser is electing to void this Agreement (the
"Voiding Notice"). Upon the Purchaser sending the Voiding Notice, this Agreement
shall become void, and within five (5) Business Days of receipt of the Voiding
Notice, the Company shall return the full amount of the Purchase Price to the
Purchaser. Upon receipt of the Purchase Price, the Purchaser shall return the
certificates representing the Shares of Common Stock to the Company.
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ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
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Section 6.1. Conditions Precedent to Obligations of the Purchaser. The
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obligation of the Purchaser to purchase the shares of Common Stock is subject to
the satisfaction or waiver by the Purchaser, at or prior to the Closing, of each
of the following conditions:
(a) Legal Opinion. The Purchaser shall have received the
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legal opinion, addressed to it and dated the Closing Date from the legal counsel
for the Company. Such legal opinion shall address the Company's authority to
enter into this Agreement, the availability of Rule 506 of Regulation D for the
offer and sale of the Shares and that upon issuance, the shares of Common Stock
shall be fully paid, validly issued and non-assessable;
(b) Accuracy of the Company's Representations and
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Warranties. The representations and warranties of the Company contained herein
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shall be true and correct in all material respects as of the date when made and
as of the Closing Date as though made at that time (except that representations
and warranties that are made as of a specific date need be true in all material
respects only as of such date);
(c) Performance by the Company. The Company shall have
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performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the Closing;
(d) No Material Adverse Effect. There has been no event
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which had a Material Adverse Effect on the Company which has not been disclosed
to the Purchaser;
(e) No Prohibitions. The purchase of and payment for the
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shares of Common Stock hereunder (i) shall not be prohibited or enjoined
(temporarily or permanently) by any applicable law or governmental regulation
and (ii) shall not subject the Purchaser to any penalty, or in its reasonable
judgment, other onerous condition under or pursuant to any applicable law or
governmental regulation that would materially reduce the benefits to the
Purchaser of the purchase of the shares (provided, however, that such
regulation, law or onerous condition was not in effect in such form at the date
of this Agreement);
(f) Company Certificates. The Purchaser shall have received
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a certificate, dated the Closing Date, signed by the Secretary or an Assistant
Secretary of the Company and certifying (i) that attached thereto is a true,
correct and complete copy of (A) the Company's Certificate of Incorporation, as
amended to the date thereof, (B) the Company's By-Laws, as amended to the date
thereof, and (C) resolutions duly adopted by the Board of Directors of the
Company authorizing the execution and delivery of this Agreement, the issuance
and sale of the Shares and (ii) the incumbency of officers executing this
Agreement;
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Section 6.2. Conditions Precedent to Obligations of the Company. The
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obligation of the Company to issue and sell the Shares of Common Stock hereunder
is subject to the satisfaction or waiver by the Company, at or to the Closing,
of each of the following conditions:
(a) Accuracy of the Purchaser's Representations and
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Warranties. The representations and warranties of the Purchasers shall be true
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and correct in all material respects as of the date when made and as of the
Closing Date as though made at that time (except that representations and
warranties that are made as of a specific date need be true in all material
respects only as of such date);
(b) Performance by the Purchaser. The Purchaser shall
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have performed, satisfied and complied in all material respects with all
covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by it at or prior to the Closing; and
(c) No Prohibitions. The sale of the Shares of Common Stock
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hereunder (i) shall not be prohibited or enjoined (temporarily or permanently)
by any applicable law or governmental regulation and (ii) shall not subject the
Company to any penalty, or in its reasonable judgment, any other onerous
condition under or pursuant to any applicable law or governmental regulation
that would materially reduce the benefits to the Company of the sale of Shares
to the Purchaser (provided, however, that such regulation, law or onerous
condition was not in effect in such form at the date of this Agreement).
ARTICLE VII
CONDITIONS SUBSEQUENT TO CLOSING
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The Company shall deliver to the Purchaser a certificate of good
standing from the Secretary of State of Texas within seven (7) Business Days
from the Closing Date.
ARTICLE VIII
TERMINATION
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Section 8.1 Termination by Mutual Consent. This Agreement may be
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terminated at any time prior to Closing by the mutual consent of the Company and
the Purchaser.
Section 8.2. Termination by the Company or the Purchaser. This
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Agreement may be terminated prior to Closing by either the Company or the
Purchaser, by giving written notice of such termination to the other party, if:
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(a) the Closing shall not have occurred by January 14,
2000; provided that the terminating party is not then in material breach of its
obligations under this Agreement in any manner that shall have caused the
failure referred to in this paragraph (a); or
(b) there shall be in effect any statute, rule, law or
regulation that prohibits the consummation of the Closing or if the consummation
of the Closing would violate any non-appealable final judgment, order, decree,
ruling or injunction of any court of or governmental authority having competent
jurisdiction; or
Section 8.3 Termination by the Company. This Agreement may be
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terminated prior to Closing by the Company, by giving written notice of such
termination to the Purchaser, if the Purchaser has materially breached any
representation, warranty, covenant or agreement contained in this Agreement and
such breach is not cured within five (5) Business Days following receipt by the
Purchaser of notice of such breach.
Section 8.4. Termination by the Purchaser. This Agreement may be
----------------------------
terminated prior to Closing by the Purchaser, by giving written notice of such
termination to the Company, if:
(a) the Company has breached any representation, warranty,
covenant or agreement contained in this Agreement and such breach is not cured
within five (5) Business Days following receipt by the Company of notice of such
breach; or
(b) there has occurred an event which could reasonably be
expected to have a Material Adverse Effect and which is not disclosed in this
Agreement; or
ARTICLE IX
LEGAL FEES
----------
In the event any Party commences a legal action to enforce its rights
under this Agreement, the non-prevailing party shall pay all reasonable costs
and expenses (including reasonable attorney's fees, accountant's fees,
appraiser's fees, and investigative fees) incurred in enforcing such rights.
ARTICLE X
MISCELLANEOUS
-------------
Section 10.1. Fees and Expenses. Except as set forth above, each
-----------------
party shall pay the fees and expenses of its advisers, counsel, accountants and
other experts, if any, and all other expenses incurred by such party incident to
the negotiation, preparation, execution, delivery and performance of this
Agreement. The Company shall pay all stamp and other taxes and duties levied in
connection with the issuance of the Shares pursuant hereto. The Purchaser shall
be responsible for its own tax
Page 12 of 17
liability that may arise as a result of the investment hereunder or the
transactions contemplated by this Agreement. Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated,
the Company shall pay all costs, expenses, fees and all taxes incident to and in
connection with: (A) all preliminary and final Blue Sky memoranda and all other
agreements, memoranda, correspondence and other documents prepared and delivered
in connection herewith (B) the issuance and delivery of the Shares, (C) the
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of the several states (including, without limitation, the fees and
disbursements of the Purchaser's counsel relating to such registration or
qualification), and (D) the preparation of certificates for the Shares
(including, without limitation, printing and engraving thereof).
Section 10.2. Entire Agreement; Amendments. This Agreement,
----------------------------
together with the Exhibits, Annexes and Schedules hereto, contain the entire
understanding of the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral or written, with respect
to such matters. This agreement shall be deemed to have been drafted and
negotiated by both parties hereto and no prescriptions as to interpretation,
construction or enforceability shall be made by or against either party in such
regard.
Section 10.3. Notices. Any notice or other communication required
-------
or permitted to be given hereunder shall be in writing and shall be deemed to
have been made upon facsimile (with transmission confirmation report) at the
number designated below (if delivered on a Business Day during normal business
hours where such notice is to be received), or the first Business Day following
such delivery (if delivered other than on a Business Day during normal business
hours where such notice is to be received) whichever shall first occur. The
addresses for such communications shall be:
If to the Company: ▇▇▇▇▇▇▇ ▇▇▇▇▇, President and Chairman
JetCo Communications Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
__________________
__________________
__________________
Tel:
Fax:
Page 13 of 17
If to the Purchaser: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., President
Wolfpack Corporation
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Gottbetter & ▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
or such other address as may be designated in writing hereafter, in the same
manner, by such person.
Section 10.4 Amendments; Waivers. No provision of this Agreement may
-------------------
be waived or amended except in a written instrument signed, in the case of an
amendment, by both the Company and the Purchaser, or, in the case of a waiver,
by the party against whom enforcement of any such waiver is sought. No waiver of
any default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of
any other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right accruing to it thereafter.
Section 10.5. Headings. The headings herein are for convenience
--------
only, do not constitute a part of this Agreement and shall not be deemed to
limit or affect any of the provisions hereof.
Section 10.6. Successors and Assigns. This Agreement may not be
----------------------
assigned by ant party without the prior written consent of all the parties
hereto. This Agreement shall be binding upon and inure to the benefit of the
parties and their successors and permitted assigns. The assignment by a party of
this Agreement or any rights hereunder shall not affect the obligations of such
party under this Agreement.
Section 10.7. No Third Party Beneficiaries. This Agreement is intended
----------------------------
for the benefit of the parties hereto and their respective permitted successors
and assigns and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
Section 10.8. Governing Law: Service of Process. This Agreement shall
---------------------------------
be governed by and construed and enforced in accordance with the internal laws
of the State of New York without regard to the principles of conflicts of law
thereof. Any action to enforce the terms of this Agreement or any of its
exhibits shall be exclusively brought in the state and/or federal courts in the
State and County of New York. Service of process in any action by Purchasers to
enforce the terms of this Agreement may be made by serving a copy of the summons
and complaint, in addition to any
Page 14 of 17
other relevant documents, by commercial overnight courier to the Company at its
principal address set forth in this Agreement.
Section 10.9. Survival. The representations and warranties of the
--------
Company and the Purchaser contained in Article III and the agreements and
-----------
covenants of the parties contained in Article IV, the default and remedies
----------
contained in Article V and this Article IX shall survive the Closing (or any
--------- ----------
earlier termination of this Agreement).
Section 10.10. Counterpart Signatures. This Agreement may be executed
----------------------
in two or more counterparts, all of which when taken together shall be
considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it
being understood that both parties need not sign the same counterpart. In the
event that any signature is delivered by facsimile transmission, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) the same with the same force and effect as if
such facsimile signature page were an original thereof.
Section 10.11. Publicity. The Company and the Purchaser shall consult
---------
with each other in issuing any press releases or otherwise making public
statements with respect to the transactions contemplated hereby and neither
party shall issue any such press release or otherwise make any such public
statement without the prior written consent of the other, which consent shall
not be unreasonably withheld or delayed.
Section 10.12. Severability. In case any one or more of the provisions
------------
of this Agreement shall be invalid or unenforceable in any respect, the validity
and enforceability of the remaining terms and provisions of this Agreement shall
not in any way be affecting or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
Section 10.13. Remedies. In addition to being entitled to exercise all
--------
rights provided herein or granted by law, including recovery of damages, the
Purchaser will be entitled to specific performance of the obligations of the
Company under this Agreement and the Company will be entitled to specific
performance of the obligations of the Purchaser hereunder with respect to the
subsequent transfer of Shares. Each of the Company and the Purchaser agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of any breach of its obligations described in the foregoing sentence and
hereby agrees to waive in any action for specific performance of any such
obligation the defense that a remedy at law would be adequate.
Signature Page Follows
Page 15 of 17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first indicated above.
Company:
JETCO COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
Purchaser:
WOLFPACK CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Page 16 of 17
[Schedules omitted]
Page 17 of 17